City of Lansing v. Lansing City Electric Ry. Co.

• Decision Date: 21 April 1896
• Citation: 66 N.W. 949,109 Mich. 123
• Court: Michigan Supreme Court
• Parties: CITY OF LANSING v. LANSING CITY ELECTRIC RY. CO.

66 N.W. 949

109 Mich. 123

CITY OF LANSING v. LANSING CITY ELECTRIC RY. CO.

Supreme Court of Michigan

April 21, 1896

Certiorari to circuit court, Ingham county; Rollin H. Person, Judge.

Mandamus proceedings, on the relation of the city of Lansing, against the Lansing City Electric Railway Company. There was a judgment for relator, and defendant brings certiorari. Affirmed.

Jay P Lee, for appellant.

Russell C. Ostrander, City Atty., for appellee.

LONG C.J.

In June, 1895, a petition was filed in the Ingham circuit asking an order against the respondent to show cause why mandamus should not issue, requiring it to pave with brick that part of Washington avenue, in the city of Lansing from Kalamazoo street south to the bridge across Grand river lying between the rails of its track, and on each side of its track, to the end of its ties. In answer to an order to show cause the respondent made return, and on the hearing in the circuit court that court determined that the respondent should pave with brick such portions of its street between its tracks, and denied the mandamus to compel it to pave that portion outside its tracks. The case comes to this court by writ of certiorari upon behalf of the respondent. The errors claimed are (1) that mandamus is not the proper remedy; (2) in ordering the mandamus to issue to compel the paving between the tracks.

It appears that prior to the organization of the respondent company the Lansing City Railway Company was organized, and obtained certain privileges and franchises from the city of Lansing, in 1886, under Ordinance No. 61 of the Public Ordinances of said city. Under this ordinance the company had the right to construct, maintain, and operate a street railway by electricity. The respondent is the successor or that company, having obtained all its rights, privileges, and franchises, and is operating by electricity its railroad within the city of Lansing. Section 12 of Ordinance No. 61 provides: "The common council hereby reserves the right to make such further rules, orders and regulations as may from time to time be deemed necessary to protect the interests, safety, welfare or accommodation of the public in relation to said railway, not inconsistent with the provisions of this ordinance." Section 15 provides "Said railway company, in constructing its tracks along any streets or avenues that are paved, shall pave between said tracks with the same material as that adjoining said tracks. If the city shall provide for the paving or grading any street or repairing of any of the bridges occupied by said company, the said company shall contemporaneously with the paving or grading of streets or repairing of bridges, at its own expense, grade or repair within said railway company's track with the same material, or with material and in manner satisfactory to the common council, and at all times keep or cause to be kept such pavements or bridge planking within said track in good repair." When the Lansing City Railway Company's tracks were first constructed along Washington avenue, said avenue was paved with cedar blocks between Kalamazoo street and the bridge crossing Grand river. The company used the same material between its rails along Washington avenue, between these points. In 1892 the Lansing City Railway Company passed into the hands of a receiver, and, while the road was under his control, permission was granted him to lay T rails upon all its lines in the city, upon condition that the company pave between its rails under the supervision of the city engineer, and subject to approval. That...